Professional Documents
Culture Documents
187-201
truck and watched for over half an hour as his eldest child died.
Although his confession to the police revealed that his crime was
premeditated—he considered “a number of ways of putting her out of
her misery but finally settled on putting her to sleep with carbon
monoxide gas” (Her Majesty the Queen and Robert W. Latimer, 1994.
p.294)—his charge was dropped from first to second-degree murder.1 In
this 1994 trial, Latimer was sentenced to the mandatory sentence for
second degree murder: twenty years in prison, with no eligibility for
parole for ten years. Because Mark Brayford, Latimer’s lawyer,
successfully appealed this decision, charging the Crown Prosecutor,
Randy Kirkham, with obstructing justice through jury tampering, a new
trial was ordered. This second trial took place in 1997.
In this second trial, Latimer was also found guilty. However, in this trial,
Justice Ted Noble, calling Latimer’s crime an act of “compassionate
homicide,” chose not to sentence Latimer to the mandatory ten years in
prison. Instead, he took the unprecedented step of giving Latimer a
constitutional exemption, sentencing him to only two years
imprisonment, with one of these years to be served on his farm (R v
Latimer, Ruling. 1997 Electronic Publication). Although this decision was
overturned in 1998 and the overturn was upheld by the Supreme Court
in 2001, Judge Noble’s decision is significant because it reveals the
extent to which the law is “thoroughly imbued with relations of power”
(Foucault, 1988, p. 60), positing and attempting to make “real” the
“ideality” of a just and good society, at the same time as it rhetorically
constructs, endorses, and reifies an inherently violent, unjust, normative,
and able-bodied reality.
1
First-degree murder is more serious than second-degree murder; it involves
premeditation and is generally believed to involve a “vengeful, hateful and
violent act designed specifically to accomplish the death of the victim” (R v
Latimer, Ruling, 1997). In the case of first-degree murder, the “offender is
denied parole for 25 years.” Second-degree murder is less serious, and, although
the “moral blameworthiness of murder can vary from one convicted offender to
another,” the offender, in this case, is eligible to apply for parole after ten years.
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
The Canadian Legal System, the Robert Latimer Case 189
2
While this paper necessarily focuses more on the rhetorical construction of
Tracy Latimer, it is important to acknowledge the way in which the media
visually depicts both Tracy and Robert Latimer. More work needs to be
undertaken in this area.
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
190 Sally Hayward
3
Responding to Noble’s construction of Tracy, the Disability-Rights Coalition
writes that “this Court should not see Tracy Latimer only in terms of her
disabilities. Her status as a human being must be paramount. Her disability
cannot be used as a justification from departing from fundamental constitutional
values. She was a person first and that fact must not be obscured by the detail of
her medical problems” (CCD Latimer Watch: “Factum Excerpts,” 1998).
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
The Canadian Legal System, the Robert Latimer Case 191
1997). While the relationship between decency and the norm is not
elucidated, it is possible to assume from Noble’s reading of the meaning
behind section 12 that, although the state may impose punishment, “the
effect of that punishment must not be grossly disproportionate to what
would have been appropriate,” as that appropriateness is read within a
decent, normative framework of understanding (R v Latimer, Ruling,
1997).
It is, as the Disability-Rights Coalition argue in their factum for the 1998
appeal, this normative able-bodied framework of understanding that
allows Latimer to twist the normative requirement, that he is, as a
parent, responsible for Tracy’s care, into an insistence that it was
“somehow justifiable for him to murder his child (CCD Latimer Watch:
“Factum Excerpts,” 1998). Subverting the notion that the murder was a
“cruel and unusual punishment” for Tracy, whose only crime was that
she was alive, and arguing instead that it was a “cruel and unusual
punishment” for Latimer, essentially “offend[ing] his Charter rights,” is
a twist in logic that makes the premeditated filicidal murderer, a victim
of his own crime (CCD Latimer Watch: “Factum Excerpts,” 1998). This
paradoxical use and, I would argue, abuse of legal logic does not escape
the Coalition, who point out that, while it might seem logical to argue
that “there is no room in Canadian law” for either a “system where
sentencing is put on a sliding scale depending on the characteristics of
the victim,” or for a “doctrine that would literally fix disabled people
with an ongoing burden to ‘justify their existence,’” in the Latimer case,
the burden is put not on Latimer, but on Tracy and her defence, to prove
that she was a “normal” human being, who could justify consideration
as such in the Canadian courts of law (CCD Latimer Watch: “Factum
Excerpts,” 1998).
In judging this case, Noble does not, however, articulate how his
decision is informed by these normative expectations and assumptions,
which operate recursively to assign meaning to both Latimer and his
daughter, Tracy, according to “decent” societal norms and liberal
expectations and assumptions that favour Latimer and the notion, if not
the practice, of mercy killing (Teubner, 1988, p. 4); Noble’s privileging of
Latimer, as an able-bodied, able-minded father, can be seen, however,
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
192 Sally Hayward
4
In the 1998 appeal, the Coalition stressed “the importance of the deterrent
function of the law,” which “cannot be overemphasized” (CCD Latimer Watch:
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
The Canadian Legal System, the Robert Latimer Case 193
The potential of this ruling to endorse a “legal remedy” for the offender
who has committed or who desires to commit an act of “compassionate
homicide,” points to the ability of law and legal interpretations to, as
Judith Butler (1993) argues, “[echo] forth” or reinvoke new laws or new
policies that, while embodying the legal authority to discursively make
and remake bodies and subjectivities, always ultimately restructures
reality in its own normative image (p. 107). In other words, the law
affirms and perpetuates the status quo, legitimating certain experiences
and certain subjectivities over others by “officially approving and
accepting, and transforming into fact” the experiences of the normative
majority, while “officially distrust[ing], reject[ing], [and finding] to be
untrue” the experiences of non-normative minorities (Teubner, 1988, p.
279).
While this legitimation of the norm makes clear, in Butler’s (1993) terms,
that “what is invoked by the one who speaks or inscribes the law is the
fiction of a speaker who wields the authority to make his words binding,
the legal incarnation of the divine utterance” (p. 107), it also suggests
law’s ability to constitutively endorse and legitimate “organized, social
practices of violence,” both a “violence which has already occurred” (as
in Latimer’s case) and a violence which “is about to occur,” or be
repeated (p. 107). Evidence of this repetition can be seen in the increasing
support for and the growing occurrence of assisted-suicide or mercy
killings in Canada (Cover, 1995, p. 203).5
In considering these facts, Noble pits the rights of Robert Latimer against
the rights of his daughter, Tracy. Refusing Kirkham’s depiction in the
first trial of Latimer “as a cold-blooded killer . . . [a] foul, callous, cold,
calculating” man, who is “not motivated by anything other than making
his own life easier” (Her Majesty The Queen and Robert W. Latimer, 1994. p.
355), Noble promotes instead the image of Latimer as a model citizen: a
“responsible and hard working farmer . . . a devoted family man with a
loving and caring nature . . . a caring and responsible person, . . . and a
loving and protective parent” (R v Latimer, Ruling, 1997).
In keeping with this character reading, Noble rejects the accusation made
in the first trial that Latimer killed Tracy because she was disabled.
Stressing that Latimer was a loving, protective parent, “devoted to this
child” and her care, Noble argues repeatedly that all the evidence
indicated that Latimer’s concern was not for Tracy’s disability, but for
her pain. In a paragraph that begins with the question, “[w]hy did he do
it?,” Noble stresses that Latimer’s “only concern was Tracy’s ongoing
pain” (R v Latimer, Ruling, 1997).
6
Again, a parallel can be made to the Terry Schiavo case. It is only when it is
clear that any attempts at rehabilitation are not going to restore Schiavo to her
former “normal” self, that her husband gives up, and starts lobbying for her
death.
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
The Canadian Legal System, the Robert Latimer Case 197
7
Section 15 of the Charter (1982) reads, “Every individual is equal before and
under the law and has the right to the equal protection and equal benefit of the
law without discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental or physical
disability.”
Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
The Canadian Legal System, the Robert Latimer Case 199
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Developmental Disabilities Bulletin, 2009, Vol. 37, No. 1 & 2
The Canadian Legal System, the Robert Latimer Case 201
Author Note